Attorney
So much of everyday life involves the use of “digital devices”. Laptops, desktops, tablets and smartphones have become the tools through which we socialize and share our lives with others, and the means through which we conduct numerous personal and business activities. On a daily basis, we use our digital device of preference to access various online services and perform some life function via an online account. By doing so, we preserve our “day-to-day life histories” by generating digital records which are stored and maintained through several online service providers. For many of us, our “online presence” is our primary way of sharing our personal lives with others, engaging in social interactions, managing various financial accounts, making retail purchases through various consumer accounts, setting up and using domain names or blogs, and recording and maintaining various loyalty program benefits. We have online accounts with Gmail, Facebook, Snapchat, Twitter, Instagram, Amazon, eBay, and the list goes on. And yet, while so much of our daily living is consumed by our online activities, most of us have never stopped to consider what happens to the records of all of our online activities and the accounts through which we engage in those activities at the moment of our death or in the event of our incapacity. All of these online accounts and records become our “digital assets”, and these digital assets are just as much a part of our personal “estates” as our cars and homes.
In an effort to resolve conflict between online “custodians” (such as Google and Facebook), family members and fiduciaries needing to access a deceased or incapacitated individual’s “digital assets”, and Federal and state law regulating the unauthorized access to and use of “digital devices” and “digital assets”, in 2016 Florida adopted the “Florida Fiduciary Access to Digital Assets Act” (the “Florida Digital Assets Act”). The main purpose of the Florida Digital Assets Act is to provide the means by which online users may determine for themselves whether to allow Internet service providers such as Google and Facebook to disclose their digital assets to fiduciaries or other third parties upon their death or incapacity. However, the most critical aspect of the Florida Digital Assets Act is that it does not operate automatically. To take advantage of the rights under the Florida Digital Assets Act, an online user must, by specific language in a “governing document”, expressly permit access by an individual’s fiduciaries to his or her digital assets. Failure to deliberately express such intent subjects access to an individual’s digital assets to the terms of service agreements and/or the policies of Internet service providers, which may not readily allow access to a deceased or incapacitated individual’s digital assets.
At the time of establishing an online account, the online service provider generally provides a “terms of service” or “terms of use” agreement. When presented with those lengthy terms, we too often simply click “I Accept” or “I Agree”, without ever reading or understanding the “fine print”. If those terms provide that the Internet service provider is not required to provide any third party access to the account or any digital assets created through use of such account, those provisions could prevent access to the digital assets and the information and records stored in such account. The Florida Digital Assets Act provides that the only sure way to override provisions in a terms of service or terms of use agreement is for the individual to provide in his or her Last Will and Testament, Trust, Power of Attorney, or through a Guardianship court order the express right and authority for the fiduciary to fully access the individual’s digital assets, and to access and use the digital device(s) where such digital assets may be stored. In light of the Florida Digital Assets Act’s requirements, each individual should review his or her estate planning documents to make certain they cover digital assets and expressly require an online service provider to allow access by the individual user’s fiduciaries to his or her digital assets.
Some online service providers may create an “online tool”, completely separate and distinct from the general terms of service or terms of use agreements, whereby the user directs disclosure or non-disclosure of his or her digital assets upon his or her death or incapacity. Examples of these online tools are the Facebook “legacy contact” feature and Google’s “Inactive Account Manager”. Under the Florida Digital Assets Act, if an online tool has been used to prohibit or limit disclosure of digital assets associated with that online account, it overrides any contrary indication in a Last Will and Testament, Trust, Power of Attorney, or Guardianship order. For instance, if a person has either selected to “memorialize” or “permanently delete” a Facebook account upon their death using the applicable “online tool”, a deceased account owner’s fiduciary will not be able to log into or have full access to and control over such account despite any contrary directions set forth in such individual’s Last Will. Therefore, in addition to reviewing one’s estate planning documents, it is important to review online accounts to determine if any direction of disclosure or non-disclosure has been made through use of an “online tool” (which again must be a designation separate and distinct from the general terms of service or terms of use), and then make certain that if full disclosure is desired, such indication has either been properly reflected through that online tool, or that one deactivates the online tool directions. Equally as important to giving a fiduciary access to one’s digital devices and digital assets is to prepare and to securely preserve with one’s Last Will or other estate planning documents an inventory of: (i) all digital devices, (ii) all online accounts, and (iii) all log-in and access information to these digital devices and digital assets, such as usernames, passwords, and answers to “security” questions.
With the magnitude of digital assets each of us create through our use of the Internet, it is important to make certain that those digital assets we wish to be preserved for the benefit of our families and friends are in fact done so. With the Florida Digital Assets Act providing the only secure mechanism to preserve those digital assets and enable disclosure of them to our fiduciaries and other third parties, existing estate planning documents and contrary online account indications may need to be properly amended to effectively implement the Act’s mandated digital asset disclosure directions.
For more information, contact Bob Bible at (239) 330-1494 or rwb@boatmanricci.com.
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